Hans Reiser Trial: April 17, 2008

Henry K. Lee is liveblogging the Hans Reiser murder trial. See all his Chronicle articles on the case here and all his blog entries here.

Trial schedule update. The trial resumes at 10 a.m. on Monday, April 21. Defense attorney William Du Bois is expected to finish his closing argument, after which prosecutor Paul Hora will provide his rebuttal argument. Judge Larry Goodman will then instruct jurors before they begin deliberating.

Legal analyst Steve Clark, who has been a prosecutor and defense attorney in Santa Clara County, attended today’s proceedings. Clark said Du Bois has a “Detective Columbo style.” “I think he did a pretty good job with the blood evidence,” Clark said. He said if Hora emphasizes the blood evidence too much and “the jury doesn’t think it’s related to the crime, it’s all going to help the defense.”

Clark said, “If I was the DA, I’d be careful about underestimating him. The circumstantial evidence is like building a house, and he’s trying to take it apart, brick by brick. It’s easier to tear down a house than it is to build one.” Clark said what prosecutor Paul Hora is doing is he’s asking the jury to “look at the evidence as a whole.” What Du Bois is doing is taking each piece of evidence and providing an innocent explanation, Clark said. “Basically, he’s saying if each piece of evidence has an innocent explanation, you should find him not guilty.”

Hora’s rebuttal argument is likely going to be strong and persuasive, Clark said. “You save your best for last,” he said, adding that the defense doesn’t have another chance to talk to the jury after that.

Afternoon session. Before jurors were brought in, Hans Reiser was disagreeing with his attorneys over some issue. After the jury filed in, Reiser was still discussing something with defense attorney William Du Bois. “Are you ready?” Judge Larry Goodman asked. “Yes!” Du Bois said with a smile.

Du Bois put on to the screen an article about a man who was released from prison after spending 23 years behind bars for a rape he didn’t commit. The man was convicted in 1985 in Dallas County, Texas and sentenced to two life terms. But a DNA analysis proved that he wasn’t the right guy, despite an eyewitness identification. The man was the 17th person in that county alone, since 2001, to be released as a result of a wrongful conviction, Du Bois said.

This is being seen across the country, “for the police to, let’s just say, push it a little bit when it comes to putting together cases,” Du Bois said. “It doesn’t apply to all cases. Lots of people are duly arrested and charged and convicted.” He noted that Alameda County is “one of the best places in the country in terms of the skill of the law-enforcement personnel, the qualification of the sheriff’s office and local police are high. The district attorney’s office is one of the best in the country, and everybody in the country knows that. It’s the same district attorney’s office that gave you Earl Warren and D. Lowell Jensen and other outstanding lawyers. You can see from the material before you that it’s an excellent office.”

But Du Bois mentioned how Colin Powell had been the one to say that there was circumstantial evidence of weapons of mass destruction in Iraq. “It must be right” if Powell says so, if you find the “finest person you can to present it, like Mr. Hora,” Du Bois said. It appeared that prosecutor Paul Hora, seated at his table, gave a small grin. Du Bois again said the jury has to take a careful look at what the evidence shows to make sure that they are convinced beyond a reasonable doubt.

For the second time today, the picture of the platypus on the screen momentarily disappeared. “What happened?” Du Bois asked co-counsel Richard Tamor, who is charge of the computer that produces the images. When it came up, Du Bois continued and referred to the platypus as Hans, as he did earlier today when “Hans” disappeared from the screen.

Du Bois said testimony by Oakland police officers who discussed Reiser’s apparent countersurveillance measures were trying to emphasize their belief that Reiser didn’t know the cops were following him, just so they could unfairly paint a picture of a guilty man. The police wanted to send the message, “He knows he’s guilty and he’s trying to throw off anybody who would like to follow him” when in fact he knew he was being followed, Du Bois said.

At one point, Du Bois mentioned an instruction that apparently doesn’t exist. Hora called him out on it. The judge agreed with the DA, but Hora was still making his case. “It must have been defense bias,” Du Bois said, adding, “I guess we all have our biases. So that’s why we have you to resolve it.”

Du Bois said nothing incriminating was found in Reiser’s hard drives, which he had removed from his computer before his arrest and given to Du Bois. But the prosecution would have you think that he was hiding something, the defense attorney said. “It’s hard to accept that inference. You could also infer that he’s crotchety, won’t give anything to the government, has a bumper sticker that says he won’t submit to search and seizure and didn’t want the government to know about his monetary transactions in Russia or with his computer company. The prosecution said there are e-mails in the computer that are incriminating, which Hora presented along with Nina’s divorce attorney Shelley Gordon, Du Bois said, and Hora’s take was that some of them were on Reiser’s computer “and he doesn’t know we have Shelley Gordon’s e-mail, he doesn’t know that his wife had forwarded every incriminating e-mail she could get her hands on to Shelley Gordon already, and so he is essentially trying to hide the incriminating e-mail,” Du Bois said.

But you have the “incriminating” e-mail — it’s in evidence, Du Bois said, and all of them were written in 2005. Not a single e-mail said, “You dirty dog, I don’t like you. I’m Hans. You’re just mean to me, you’re rotten. Nina, you’re rotten.” None of this happened in 2006, Du Bois said, repeating that his client is simply “crotchety, old, eccentric — in comparison to me he’s still young — he’s crotchety and Asperger’s disorder and he doesn’t like the government — even though he used to work for the Department of Justice, he doesn’t mind if the government is paying him, just doesn’t like it any other way.”

Du Bois said the parties have stipulated to a statement by Oakland police Officer Michael Weisenberg stating that Reiser knew he was being followed by police at one point.

Du Bois noted that it was the defense who called former Oakland missing persons investigator Ryan Gill to the stand. Gill, now a San Leandro officer, never previously testified for the prosecution.

Du Bois referred to how homicide Lt. Ersie Joyner said at a police meeting that catching Reiser acting nervous while the police follow him would play well in front of a jury. Du Bois commented that he remembered Joyner when he was a patrolman. Du Bois said his client was simply paranoid because he has Asperger’s and that being paranoid is consistent with having that disorder, per the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, or DSM-IV. Just because he’s “acting funny” doesn’t prove he’s guilty, Du Bois said.

Du Bois said Nina’s mother, Irina Sharanova, lied when she said she decided not to return from Russia with her grandchildren because DNA information had linked Reiser to the case. Those results came back a month before she left, Du Bois said. Sharanova also lied when she denied coaching her grandson as to what to say, the defense attorney said. Sharanova was “lying on multiple occasions while testifying under oath,” Du Bois said.

Du Bois said the prosecution has told jurors that Reiser lied on the stand when he said he never removed the battery from his cell phone and that, as such, his entire testimony can be rejected. Well, if that standard is to be used, then the jury should reject Sharanova’s testimony, Du Bois said.

Just because a copy of the Oakland Tribune — with a front-page story about the police search of Reiser’s home — was found in his car doesn’t mean anything, Du Bois said. The police are searching your home for evidence that you killed your wife? “How dare he read the article,” Du Bois said. “He’s interested in what’s going on in the investigation of him for killing his wife. One points to innocence and the other to guilt. That’s the thing about circumstantial evidence. Each piece has to be evaluated. Does it point to both innocence and guilt? If it does you must adopt the interpretation that points to innocence. Can I gather up all the guilty ones and ignore the innocent ones? No, that’s not what the law says.”

Du Bois referred to the mixture of two DNA profiles on the post in his client’s home. One can’t age DNA, and it’s possible that Reiser touched the post years ago and Nina touched it after wiping her nose some time later, they profiles were left at two different times but the sample was taken in one instance by the police, Du Bois said.

Du Bois said the case against his client was like trying to fit Cinderella’s feet into the glass slipper. He referred to testimony by defense DNA expert Keith Inman, in which he testiifed that a scratch on the bloodstained post or pillar came after the blood was deposited. This contrasted to Oakland police criminalist Shannon Cavness simply giving her opinion that the blood came after the scratch. “This was just wear and tear at the house. That stain had been there that long,” Du Bois said.

Du Bois said he had a pop quiz: Besides Hans and Nina, how many other people’s DNA was found in the house? Four. Another pop quiz: how many samples of blood were not tested at all by Ms. Cavness? “We’re going to go through that in a minute.”

Du Bois said, “The reason I asked the question is to illustrate that the collection of evidence is reflective of a bias, the bias to collect evidnece that could possibly convict Hans Reiser, and not to collect evidence or process evidence that tends to point to his innocence.”

“His argument to you, ‘oh gee,’ sort of humorously by the prosecutor, using humor in his tone” in dismissing the possibilty that Nina had a bloody nose or had cut her hand — all that is a reasonable possibility, he said. Du Bois noted that there was DNA from three unidentified women found on a couch in the Reiser home. “So somebody sat on that couch,” Du Bois paused before finishing, “who had blood.”

As far as the pillar, thousands of other people could have deposited their DNA on it, Du Bois said, citing DNA testing and statistical analysis, and as far as the DNA of Hans and Nina being found there, we don’t know if it’s “Hans’ blood and Nina’s saliva,” or “Nina’s blood and Hans’ saliva” or some other combination.

Du Bois once again discussed the dueling interpretations of guilt versus innocence.

That a bloodstain containing Nina’s DNA profile was found on a sleeping bag sack in Reiser’s car also isn’t indicative of anything, especially when it was a relatively weak sample, Du Bois said. “There’s no way to tell how it got there,” he said.

District Attorney Tom Orloff arrived at this point to watch the remainder of the proceedings.

“You can’t convict a man on murder based on the prosecution’s suggestion that perhaps the sleeping bag picked up on this very weak sample from something that was on the floor of the car, when he can’t prove that anything was on the floor of that car, ever,” Du Bois said. “”Or if you even accept that there might have been something on the floor of the car, what it was or how it got there. There’s no evidence that there was ever anything deposited on the floor, on the seat or in the back of the car. If you disagree, tell me what and under what circumstances. There’s no evidence, none.”

Du Bois cited testimony by his client that the Reisers had gone camping together. Nina’s DNA could have been left on the sleeping bag as a result of drool or some other bodily fluid, he said.

The blood from an unidentified man was found on a light switch and blood from an unidentified woman was found on a vanity in Reiser’s home, Du Bois said. “The reason there’s blood is if the police come to your house and search for two days, they’re liable to find a number of spots of blood, because people leak.” Police will find “deposits of that nature. Human beings leak in their houses. It’s not uncommon to find their DNA.” Hora grinned when Du Bois said this.

Morning session. We were to begin at 11 a.m. today because of a scheduling issue. The jury hasn’t been brought in yet. Judge Larry Goodman, prosecutor Paul Hora and defense attorney William Du Bois are chatting informally in the courtroom. Hora and Du Bois began haggling over something. “You’re going to object to it?!” Du Bois said indignantly to Hora, who nodded his head and said yes. The judge beckoned the attorneys to come into his chambers. Hans Reiser’s parents, Ramon Reiser and Beverly Palmer are sitting separately in the gallery . The elder Reiser has spent most days outside in the foyer because all witnesses have been barred from being present during testimony. This is his first day in the courtroom. Goodman’s door opened, and Du Bois and co-defense counsel Richard Tamor emerged from chambers and continued their discussion. The two defense attorneys then went back into chambers. Tamor exited the courtroom at one point. It’s 11:20 a.m. It’s 11:31 a.m. Something’s going on. Both defense attorneys are on their cell phones.

At 11:36 a.m. Hans Reiser was brought in from the stairwell. The jurors were buzzed by sheriff’s deputies, signaling they were clear to come down from the sixth floor, one floor up. A picture of a platypus — a real one, not a stuffed animal — is on the screen.

After the jurors filed in, Goodman said, “Morning, folks. Sorry for the delay. An issue came up that I didn’t foresee.” He turned to Du Bois and said, “Bill?”

Du Bois addressed the jurors and motioned to the platypus picture. “This is what they actually look like,” he said. “But you get the idea.”

Du Bois acknowledged that the trial has been lengthy but said, “There are things that need to be said in this trial and, um, I think they ought to be said.”

Du Bois said although the prosecution has the burden of proof, he believes that in the past 10 years or so, the burden of proof “has been getting lighter and lighter.” Hora scrunched his face from his table. Du Bois said, “The law in this case stays the same, but people are willing to accept less and less evidence before they convict. And that’s because we like our government to do the right things. We feel that they like to do the right things.”

Du Bois said, “So it gets less and less, and so we see people in increasing numbers released from prison after 20 to 30 years when the evidence demonstrates that they were falsely convicted. And in this case we have evidence that the government took the easy way out. The government — when I say the government shades evidence — I once was a prosecutor, so I believe in the system. I don’t mean that they sit behind closed doors thinking of ways to frame people,” Du Bois said, rubbing his hands, as if to signal some conspiracy was being hatched. The prosecution divides the world into good guys and bad guys, and the government is the good guys, Du Bois said.

The authorities have done things in this investigation which “tend to change the evidence just a little bit.” In this case, there’s nothing as dramatic as someone being identified by witnesses, only to be cleared later by DNA evidence, he said. “It’s not as overt,” Du Bois said. You live in a “pretty good jurisdiction where the police are pretty much on the up-and-up. You’re privileged to have a case presented by Mr. Hora. There is no one better than he in presenting the evidence which has been collected in a criminal case.”

But Oakland police criminalist Shannon Cavness acknowledged that she made a mistake while collecting blood samples from the pillar in Reiser’s home, Du Bois said. The police “collected evidence that tends to support tends to support the prosecution theory and ignores the evidence that does not,” Du Bois said.

Du Bois repeated his belief that the reason Hora raised his voice during his closing argument was because “everything he’s got doesn’t support his theory.”

Du Bois accused the prosecution of bringing up the thousands of dollars Reiser had on his possession when he was detained and arrested as an attempt to compare him to convicted murderer Scott Peterson, who had thousands of dollars on him when he was arrested near San Diego in the slaying of his pregnant wife, Laci.

The prosecution also tried to cast suspicion on Reiser by referring to the issue of whether his cell phone battery was detached or not. Reiser initially testified that his battery was always in his phone. A week later, he said “I have to correct something, I don’t know if my battery was in or out of the cell phone.” Officer Jesse Grant “knew the significant of the battery (being) out,” Du Bois said. “Hans nevertheless says that after the police start following him, on occasion he removes the cell phone battery. He admits that, when he doesn’t have to. There’s a shading that happens. Sometimes, shading can be the difference between life and death.”

Du Bois again said police failed to properly look at another suspect, Sean Sturgeon, who had been his client’s best friend until he slept with Nina. Sturgeon gave Nina a “large amount of money” on Aug. 31, 2006, just days before she disappeared, Du Bois said. The Reisers’ son told social workers that Sturgeon “has the word ‘rage’ carved — not tattooed — carved in his arm.” Du Bois said Reiser and Sturgeon’s relationship “had deteriorated since Sean started sleeping with his wife, a fact for which the defendant forgave his wife. But that type of thing will gnaw at you over time.”

At this point, Sheriff’s Deputy Sheri Moss gave a cup of water to a female juror in the back who was coughing.

Du Bois said, “If somebody wants to get rid of my cell phone, it’s not hard. If they don’t want the secret police — the cell phone police to monitor it, even when it’s turned off, they can take the battery out and throw it away and just drop it in the fish pond in Montclair park, and no one would ever know where it is.” Why would someone just leave it, “assuming Nina is the victim of foul play,” disassemble it and put it in such a way that a person who finds that car will find the cell phone disassembled, unless they want to leave a message? Du Bois asked. “Unless they want to say, ‘Hmm. This is interesting. The battery’s out of the cell phone.’

“And you haven’t been given the benefit of Sean Sturgeon’s testimony, who has an equal motive. He’s a jilted lover. Nina Reiser just told him she’s marrying (Anthony) Zografos. (Sturgeon) still cares about her, and he’s the guy who has ‘rage’ carved in his arm.”

All this time, the picture of the platypus has been projected on the screen. “Did you know that the platypus is the only mammal that lays eggs?” Du Bois asked, smiling. “I was trying to think recently how a platypus could even evolve. It must have been a genetic mistake. That’s why it reminded me of…” Du Bois trailed off but turned his head and gave a disdainful look at his client. Some laughter in the courtroom.

As he did yesterday, Du Bois referred to his client’s judo instructor Willy Cahill. Cahill said all his students had the “character of restraint, not using the skills that one learns in judo,” Du Bois said.

Du Bois said he didn’t know why the people called Reiser’s judo friend, Artem Mishin, to the stand, other than to perhaps describe how he drove the defendant on Sept. 18, 2006 when the police conducted a full-scale surveillance.

Du Bois referred to Santa Rita Jail inmate Arthur Gomez’s testimony that Reiser ran to a TV in jail when a KTVU report came on discussing the discovery of a body in the Oakland hills. The prosecution wants you to infer that “he got up only because he’s guilty. ‘Oh darn, they found Nina’s body’ ” Du Bois said, rather than “He got up to see what was going on, whether it was Nina’s body, because he’s interested, vitally interested in not being convicted of this crime he didn’t commit.”

If Reiser indeed is a scientist who thinks about everything, as the prosecution believes, why would you “kill Nina” after Zografos, the lawyers and others are aware that she’s coming to your house with the kids, “thereby putting the children in a position where they may on-view you killing their mother?” Du Bois asked. “Even for a platypus, that one’s hard to believe.”

Speaking of platypuses (platypi!?), Du Bois said at one point, “I just know this is one of the great screw-jobs of what happened to Hans Reiser. It’s easy to screw a platypus.” He also remarked, “I don’t know how they stay away from predators. They must taste terrible.”

A number of times today, Du Bois said Hora’s “fallback position” in the absence of evidence is that Nina would never leave her kids. Yet, Nina did leave her kids with her parents on two occasions, Du Bois said.

Another juror, this time a woman in front, was coughing. Moss gave her a cup of water as well. There must be something going around.

Du Bois said his client must have thought of everything to throw people off his track, such as buying the two books on murder, taking his mother’s cars and to cause her to look or ask for them, not wiping off the blood on the pillar in his home and taking the front passenger seat and back part out of his mother’s Honda CRX. “Whatever you do, don’t wipe the blood off the pillar,” Du Bois said. “And make sure that you get the sleeping bag that has some blood on it in the back of your car.” Reiser has “planned everything,” Du Bois said again.

And had Reiser called Nina’s cell phone many times, asking, “Nina, where have you been? I was so worried about you?” then the prosecution would just say, “He’s just trying to throw you off, making those calls to Nina,” Du Bois intoned, using a deep voice to represent the government. “He saying he’s interested. He’s throwing you off, ‘cuz he’s a high-tech guy. If you really want to throw people off, he’d be making more calls than anyone else, even Ellen Doren,” Du Bois said.

And to throw more suspicion from himself, Reiser allegedly said, ” I need to talk to my lawyer” in the phone call with Doren, Du Bois said. “Of course, he doesn’t have a criminal lawyer, all he’s got is a family lawyer. And I don’t think he said, ‘I need to talk to my lawyer,’ he said, ‘YOU need to talk to my lawyer.’ He thought it was a trick that Nina pulled on him. Not because he’s trying to throw people out. Not because he’s planning anything.”

Both Doren and Zografos didn’t immediately call asking where Nina was because “they thought she was taking some time off,” Du Bois said. “They both knew Nina. And it was consistent with their knowledge of Nina that she took a little time off.”

Du Bois said Oakland police failed to see if their had been any “sexual trysts” involving people Nina may have met on Craigslist personal ads. No one determined if she had went to any of their houses. “Not one of them was contacted by the Oakland police — that would be inconsistent with the theory that they ultimately wanted to bring,” Du Bois said. “We don’t know if she had a pre-arranged plan to meet with one of them when she left Hans’ house, or had pre-arranged plans to meet Sean Sturgeon when she left Hans’ house.”

Returning to the theme of how Reiser must have covered his tracks, Du Bois said he wanted to give his client the benefit of the doubt. If there was some blood he wanted to clean off, he wouldn’t use a hose to spray the inside of a car, throw out the seat and back area “just to throw people off his track.”

Reiser kept receipts for everything he did, Du Bois said. How do we know he went to Manteca? He kept the receipts, Du Bois said, “just to throw people off the tracks. As a matter of fact, his conduct is equally as consistent with someone who is naive, paranoid, but not guilty, as it is with someone who is guilty, if it is consistent with someone who’s guilty. When you think about it, Hans did nothing irrational as the prosecutor said or impulsive. He thinks about everything.” So if he wanted to conceal his activities, “however feeble,” then he’d rent a car. “You don’t steal your mother’s car, leave her without transportation,” Du Bois said.

The DA offered no evidence that Reiser was trying to destroy the CRX, Du Bois said. “There hasn’t been a smidgen of proof of evidence as to what that was. Nothing whatsoever.”

The only thing that the prosecutor has done is to raise his voice, Du Bois said, adding, “I used to do it. That’s how I know.”

And besides raising your voice, “you can put things up here in red,” Du Bois said, motioning to the screen. Throughout his closing argument, Hora put dueling defense and prosecution theories in red on the screen. “You can tell when the prosecutor really wants you to get something, he has it in red. Makes a great impression in your mind when you see it.” He referred to the often-used phrase, in red, that Hora used: “Because it was evidence that tied him to murder.” “WHAT EVIDENCE?” Du Bois asked. “As to what the evidence was that he was destroying — have you got that yet from the prosecution? Nope, and it’s his burden of proof to do that. It doesn’t count that he puts it in red. It doesn’t create evidence. It just creates an impression in your mind. It’s just him talking.”

Du Bois noted that Redwood City police Officer (now Sgt.) Eric Stasiak didn’t see anything unusual in the CRX when he stopped Reiser for a traffic violation on Sept. 12, 2006. There was nothing wrong with the car, no ‘gee whiz, there’s evidence in the car that tends to tie Hans to murder,’ Du Bois said. Stasiak let Reiser go “because he was on traffic duty, not homicide duty.”

As it approached 12:30 p.m., Du Bois stopped several times during his argument and looked at Goodman, asking if it was time to break. The judge told him he had some more time because we started late. The third time Du Bois paused, Goodman smiled and relented. “I’m sorry, my clock is different,” Du Bois said amiably.